FEDERAL COURT OF AUSTRALIA
Mentha, in the matter of Hans Continental Smallgoods Pty Ltd (Administrators Appointed) (No 2) [2009] FCA 255
Corporations Act 2001 (Cth) ss 439A, 447A
MARK FRANCIS XAVIER MENTHA, BRYAN KEITH MCMASTER AND JOHN RICHARD PARK, IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF HANS CONTINENTAL SMALLGOODS PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 009 758 258), SWICKER'S KINGAROY BACON FACTORY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 009 678 693) AND SUN PORK FOODS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 100 494 264)
NSD 1939 of 2008
JACOBSON J
20 MARCH 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1939 of 2008
BETWEEN: MARK FRANCIS XAVIER MENTHA, BRYAN KEITH MCMASTER AND JOHN RICHARD PARK, IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF HANS CONTINENTAL SMALLGOODS PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 009 758 258), SWICKER'S KINGAROY BACON FACTORY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 009 678 693) AND SUN PORK FOODS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 100 494 264)
Plaintiffs
JUDGE:
JACOBSON J
DATE OF ORDER:
20 MARCH 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Interlocutory Process be made returnable instanter.
2.The plaintiffs have leave to file in Court the affidavit of Brian Keith McMaster affirmed on 19 March 2009.
3.Confidential Exhibit BMK-4 to the affidavit of Brian Keith McMaster affirmed on 19 March 2009 and filed in this proceeding be confidential, and no person is to have access to that document without an order of the Court.
4.Pursuant to section 447A of the Corporations Act 2001 (Cth) (the Act), Part 5.3A of that Act is to operate in relation to each of Hans Continental Smallgoods Pty Limited (Administrators appointed), Swicker’s Kingaroy Bacon Factory Pty Ltd (Administrators appointed) and Sun Pork Foods Pty Ltd (Administrators appointed) (Companies and each a Company) as if the convening period referred to in section 439A were the period ending at midnight on 29 April 2009.
5.With respect to each Company, pursuant to section 447A(1) of the Act, Part 5.3A of the Act is to operate as if:
a.section 439A(1) also provided that the meeting of creditors required by that section may be convened and held within the convening period (including within the convening period as extended pursuant to section 447A);
b.section 439A(2) of the Act provided that the meeting must be held within five business days from being convened in accordance with subsections 439A(3) and (4), being a date not necessarily within five business days from the end of the convening period (including the convening period as extended pursuant to section 447A) and
c.section 439A of the Act operated generally to permit the convening and holding of the meeting of creditors of the Company during the convening period (including the convening period as extended pursuant to section 447A) provided the requirements of subsection 439A(3) and (4) are complied with.
6.The plaintiffs’ costs of the proceedings be paid pro rata as a cost of the administration of each Company.
7.Liberty to apply is granted to any person who can demonstrate sufficient interest to modify or discharge orders 4 to 6 on not less than 48 hours notice to the plaintiffs.
8.Notice of orders 4 to 6 is to be despatched by the Administrators to the creditors of Swicker’s Kingaroy Bacon Factory Pty Ltd by 5pm on Monday 23 March 2009.
9.The plaintiffs have liberty to apply.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using the Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1939 of 2008
BETWEEN: MARK FRANCIS XAVIER MENTHA, BRYAN KEITH MCMASTER AND JOHN RICHARD PARK, IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF HANS CONTINENTAL SMALLGOODS PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 009 758 258), SWICKER'S KINGAROY BACON FACTORY PTY LTD (ADMINISTRATORS APPOINTED) (ACN 009 678 693) AND SUN PORK FOODS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 100 494 264)
Plaintiffs
JUDGE:
JACOBSON J
DATE:
20 MARCH 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 16 December 2008, I made orders pursuant to section 439A(6) of the Corporations Act2001 (Cth) (Act) extending the convening period for the meeting of creditors of each of the companies required to be held pursuant to section 439A of the Act until midnight on 30 March 2009. The administrators now seek further extension of the convening periods in respect of Hans Continental Smallgoods Pty Limited, Swicker’s Kingaroy Bacon Factory Pty Ltd and Sun Pork Foods Pty Ltd until midnight on 29 April 2009. The application is supported by an affidavit of Mr Brian Keith McMaster affirmed on 19 March 2009.
I have considered the affidavit and the helpful written submissions provided by Senior Counsel for the plaintiffs. For convenience, I will mark the submissions as MFI-1. I am satisfied that I have power to make the orders pursuant to section 447A of the Act.
I will therefore make orders in terms of the short minutes of order which I will sign and date.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 20 March 2009
Counsel for the Plaintiff: Mr I. M. Jackman SC Solicitor for the Plaintiff: Baker & McKenzie
Date of Hearing: 20 March 2009 Date of Judgment: 20 March 2009
- AGLC
- Mentha, in the matter of Hans Continental Smallgoods Pty Ltd (Administrators Appointed) (No 2) [2009] FCA 255
- Case
- [2009] FCA 255
- Decision Date
CaseChat Overview and Summary
The court had to determine the appropriate interpretation and application of section 447A of the Corporations Act 2001, specifically how it affects the convening of meetings of creditors under Part 5.3A of the Act. The plaintiffs argued that the convening period should be extended to allow for the necessary administrative procedures to be completed, and that the meetings of creditors should be held within this extended period. The court considered the language of section 447A and its interaction with other sections of the Act, particularly section 439A, which sets out the requirements for convening meetings of creditors.
The court ruled that the convening period under section 439A could indeed be extended by section 447A, and that this extension would apply to the convening and holding of meetings of creditors for the relevant companies. The court clarified that the meetings of creditors must still comply with the procedural requirements outlined in sections 439A(3) and (4) of the Act, but could be convened and held within the extended convening period. The court further ordered that the plaintiffs’ costs of the proceedings be treated as costs of the administration of each company, and granted liberty to apply to modify or discharge certain orders.
In summary, the court granted the plaintiffs' application to extend the convening period for the meetings of creditors, clarified the procedural requirements, and ordered the costs and notice requirements as specified in the orders. This decision provided clarity on the interaction between sections 439A and 447A of the Corporations Act 2001, ensuring that the administrative process could proceed in an orderly manner.
Orders
Orders of the court
1. The Interlocutory Process be made returnable instanter.
2. The plaintiffs have leave to file in Court the affidavit of Brian Keith McMaster affirmed on 19 March 2009.
3. Confidential Exhibit BMK-4 to the affidavit of Brian Keith McMaster affirmed on 19 March 2009 and filed in this proceeding be confidential, and no person is to have access to that document without an order of the Court.
4. Pursuant to section 447A of the Corporations Act 2001 (Cth) (the Act), Part 5.3A of that Act is to operate in relation to each of Hans Continental Smallgoods Pty Limited (Administrators appointed), Swicker’s Kingaroy Bacon Factory Pty Ltd (Administrators appointed) and Sun Pork Foods Pty Ltd (Administrators appointed) (Companies and each a Company) as if the convening period referred to in section 439A were the period ending at midnight on 29 April 2009.
5. With respect to each Company, pursuant to section 447A(1) of the Act, Part 5.3A of the Act is to operate as if:
a. section 439A(1) also provided that the meeting of creditors required by that section may be convened and held within the convening period (including within the convening period as extended pursuant to section 447A);
b. section 439A(2) of the Act provided that the meeting must be held within five business days from being convened in accordance with subsections 439A(3) and (4), being a date not necessarily within five business days from the end of the convening period (including the convening period as extended pursuant to section 447A) and
c. section 439A of the Act operated generally to permit the convening and holding of the meeting of creditors of the Company during the convening period (including the convening period as extended pursuant to section 447A) provided the requirements of subsection 439A(3) and (4) are complied with.
6. The plaintiffs’ costs of the proceedings be paid pro rata as a cost of the administration of each Company.
7. Liberty to apply is granted to any person who can demonstrate sufficient interest to modify or discharge orders 4 to 6 on not less than 48 hours notice to the plaintiffs.
8. Notice of orders 4 to 6 is to be despatched by the Administrators to the creditors of Swicker’s Kingaroy Bacon Factory Pty Ltd by 5pm on Monday 23 March 2009.
9. The plaintiffs have liberty to apply.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: JACOBSON J
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